Supreme Court says Pentagon can bar protesters

Richard Wolf, USA TODAY 5:11 p.m. EST February 26, 2014
Federal law permits the military to expel previously banned protesters, regardless of their First Amendment rights
Story Highlights
• Protester was banned for vandalism, trespassing
• He claimed free-speech rights in authorized protest zone
• Unanimous court rules military controls the land
WASHINGTON — The Supreme Court on Wednesday unanimously upheld the Pentagon’s right to exclude protesters from military bases, even while allowing easements and exceptions for highways and other civilian uses.
The 9-0 opinion, written by Chief Justice John Roberts, was based on a federal law and not the First Amendment claims of John Dennis Apel, a previously expelled vandal who argued he had a right to demonstrate in an authorized protest zone.
The Obama administration had forcefully defended its right to bar Apel, 63, from Vandenberg Air Force Base following his acts of vandalism and trespassing in 2003 and 2007. The court agreed, noting the military commander retains control of the entire property and can pick and choose any exceptions.
Lawyers for Apel had contended that his presence inside a designated protest area along the scenic Pacific Coast Highway in 2010 posed no threat to the Pentagon.
The case was one of several free-speech cases facing the court this term. Before they adjourn in June, they will rule on at least four others involving political contributions, public prayer and how far protesters can be moved away from abortion clinics and Secret Service protection zones.
The Apel case concerned the military’s power over land it owns but shares peaceably with state and local governments. During oral arguments in December, the conversation focused less on the Constitution and more on green lines and Google Maps.
As for the First Amendment, Justice Antonin Scalia told Apel’s attorney, Erwin Chemerinsky, dean of the University of California-Irvine School of Law: “You can raise it, but we don’t have to listen to it.”
At the center of the case was Apel, who has protested on and off for 17 years against Vandenberg’s use of missiles and space-based weapons. He crossed the line from protester to criminal in 2003 by spilling his blood on the base’s entrance sign.
Apel was convicted of trespassing and vandalism, then convicted again for trespassing in 2007 and ultimately barred from the property under a section of the U.S. Code. Still, he joined three protests in 2010, remaining in the designated protest zone across from Vandenberg’s main gate. Each time, he was arrested and escorted away. For his trouble, he was ordered to pay a total of $355 in fines and fees.
Apel sued and lost twice in lower federal courts before winning a simple, one-page reversal from the 9th Circuit Court of Appeals, which ruled that the government lacked exclusive rights to the protest zone property.
Chemerinsky sought to base the case around Apel’s free-speech rights. “This court has never said there’s a permanent forfeiture of First Amendment rights because somebody misbehaved at one time,” he said during oral arguments.
But the justices were having none of it. Most agreed that the government owns the land and can allow for traffic, protests, schools and anything else without ceding its rights to clamp down when it sees fit.
“They’re entitled to have it both ways,” Scalia said. “It’s their base.”
Justice Anthony Kennedy noted that a utility company has an easement on his property in California, but “they can’t hold a picnic there.”
“It the commander wants to close the base for a rocket launch,” Kennedy said, “he certainly can.”